Appeal from the Circuit Court of Calhoun County; the Hon. PAUL
R. DURR, Judge, presiding. Order reversed and cause remanded with
The subject of this appeal is an order of the Circuit Court of Calhoun County which modified a former order of that court as it related to custody of the two adopted minor children of Harvey and Dora McAdams.
Dora McAdams appeals to this court from an order which awarded the custody of these two children to Patsy McAdams, the widow of Harvey McAdams.
Harvey and Dora McAdams adopted three children during their marriage. In 1956, they were divorced and the custody of the two minor children was awarded to Harvey because Dora was obliged to care for a sister who was suffering from cancer. Dora received the custody of the older child. The court found that Dora demeaned herself properly during the marriage and that Harvey committed acts of extreme and repeated cruelty upon Dora. Each spouse was given reasonable rights of visitation with the child or children in the custody of the other.
After their divorce Dora was married and divorced three times, twice to the same person. Lewis Plogger divorced her for cruelty and a month later they were remarried. The other two divorces were apparently secured for faults of her spouse. At the time of the hearing in this cause she was divorced.
Harvey married Patsy Whitehead, and he and Patsy lived together with Patsy's two children by a previous marriage, the two adopted children of Dora and Harvey and a child born to Harvey and Patsy.
On July 23, 1962, Harvey was killed as a result of an industrial injury and thereafter on August 13, 1962, Dora McAdams filed her petition to modify the decree of the Circuit Court of Calhoun County and to secure custody of her two adopted children.
A similar petition to modify the decree was filed by Patsy McAdams on October 8, 1962, and the parties stipulated to have a hearing on both petitions on February 15, 1963.
After the hearing the court entered an order modifying the decree and granted custody of the minor children to Patsy McAdams. The order recited that each party consented that the petitions be consolidated and that a hearing be held thereon. In addition the order recited that Patsy McAdams was receiving social security benefits. Also the court found that Dora had been married and divorced as recited herein and found that she had no church affiliation. On the other hand, the court found that Patsy McAdams and the children attended church regularly. The abstract shows that she and the children attend church but there is no indication as to the frequency of the attendance. The court further found that Dora did not regularly visit the children after the decree of divorce but did visit with them on several occasions. Finally the court found that Dora had forfeited her right to the custody and care of the children, and that Patsy was a fit and proper person and that the best interests of the children would be served by awarding the custody of the children to Patsy McAdams.
The plaintiff contends now that the court had no jurisdiction over the subject matter or the person of Patsy McAdams. As was previously stated, Patsy McAdams filed a petition in the cause, thus submitting herself to the jurisdiction of the court. There is no question but that the court had jurisdiction over the subject matter. Plaintiff made no objection in the trial court to the manner in which Patsy McAdams entered the litigation and consented to a consolidation and hearing on both petitions. It would have been proper for her to have petitioned for leave to intervene but this was not done. She was an interested party since she had physical custody of the children and this interest was sufficient to justify her presence in the litigation. Plaintiff's contention on this point is technical rather than substantive and now comes too late.
But there are very real and very difficult questions which are properly presented to this court for its consideration. We must weigh the custodial rights of a sole surviving adoptive parent against the custodial rights of a stepmother who is not related to the children but who has shared physical custody of the children for thirteen months and had sole custody for approximately one month before the petition to modify the decree was filed. From a purely legal standpoint we are presented with a contest between one with the legal right to custody, unless she is to be deprived of it, together with the duty to support as against one with no right to custody, unless she is to be awarded it, and no duty to support. We must resolve the contest by resort to nebulous phrases and inconsistent rules of law giving full consideration to the primary and superior right of the parents to the custody of the child and a consideration of that which will best serve the welfare or best interest of the child. Thus, parents are entitled to custody of their child unless they are unfit or if not unfit the "welfare" of the child would be best served by denying the parents custody of their child. So it is apparent that the test is in fact no test and each case must be heard on its own facts in search of the ephemeral concept "welfare."
Unfortunately no court in Illinois has defined "welfare" as herein used so that we can measure the prospects of these children with the two contestants. Mr. Justice Klingbiel called for a standard in his concurring opinion in Giacopelli v. Florence Crittenton Home, 16 Ill.2d 556, 158 N.E.2d 613. He stated, "Where the issue is nothing more specific than welfare, the range of inquiry is virtually unlimited, with corresponding room for arbitrary or personal decision." In that case the majority disclaimed interest in the financial situations of the parties beyond an ability to support and educate, but the court expressed interest in the physical advantages of the two homes, and in the sufficiency of the homes. The court was also interested in the past conduct and character of the respective contestants as relating to their fitness. Likewise the marital experience of the petitioners was considered.
It must be the law that a natural parent or an adoptive parent shall retain custody of his child as against all the world if certain basic conditions of decency, respect, and guidance prevail in the natural or adoptive parents' home. If such were not the rule then the statement in the majority opinion of the Supreme Court in the Giacopelli case that, "It is always recognized that a natural parent has a superior right to the custody of his child," would be meaningless and swallowed up in the all encompassing test "welfare." Can there be any doubt that for almost any child a home could be found which offers greater physical advantages? Are there not people whose past conduct and character, whose efforts and accomplishments shine as a star in the eyes of all as compared to the flicker of light generated by the efforts of the ordinary parent? There are those whose marital experiences would serve as a model to most of us. But this is not to say that these few shall enjoy the custody of our children at their request.
It would be difficult to conceive of a single child so situated that an improvement in his family life in one respect or another, or in the total picture could not be made. For this reason man is gregarious and he shares his accomplishments, one with the other. In addition to the training received in the home, children receive spiritual training in the church, academic training in the school, and citizenship and culture from many other sources. Society does not demand that in order that a parent may retain custody of his child he be a school teacher, a minister, a scoutmaster, a dancing master or musician. ...